Narragansett Elec. Co. v. U.S. E.P.A., 04-1127.

• Decision Date: 06 May 2005
• Docket Number: No. 04-1127.,04-1127.
• Citation: 407 F.3d 1
• Parties: The NARRAGANSETT ELECTRIC COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Commonwealth of Massachusetts, Intervenor.
• Court: U.S. Court of Appeals — First Circuit

Page 1

407 F.3d 1

The NARRAGANSETT ELECTRIC COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Commonwealth of Massachusetts, Intervenor.

No. 04-1127.

United States Court of Appeals, First Circuit.

Submitted April 26, 2005.

Decided May 6, 2005.

Ernest Gellhorn, Garrett Rasmussen, Jeffrey Wertkin, Law Office of Ernest Gellhorn, and Patton Boggs LLP, on brief for petitioner.

Laurel A. Bedig, Environmental Defense Section, and Thomas L. Sansonetti, Assistant Attorney General, Environmental and Natural Resources Division, United States Department of Justice, on brief for respondent.

William L. Pardee, Assistant Attorney General, Environmental Protection Division, and Thomas F. Reilly, Attorney General, Commonwealth of Massachusetts, on brief for intervenor.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

The litigation at issue here is an outgrowth of an earlier action appealed to this court, see Commonwealth of Mass. v. Blackstone Valley Elec. Co., 67 F.3d 981 (1st Cir.1995), an environmental case in which we ordered a key question referred to the United States Environmental Protection Agency ("EPA") under the primary jurisdiction doctrine. Not liking the EPA's response, the successor to the defendant in the initial action filed suit directly in this court, asserting that the courts of appeals have original jurisdiction under 33 U.S.C. § 1369(b), which grants direct appellate review of certain actions under the Clean Water Act ("CWA"). Because we find that direct appellate review of the precise action here — an interpretation of an already listed toxic pollutant in response to a primary jurisdiction referral — is not within the scope of section 1369(b), we hold that we lack subject matter jurisdiction. Rather than dismissing the petition, we transfer it, for efficiency purposes, to the Federal District Court for the District of Massachusetts, thus consolidating it with the underlying environmental litigation that generated the primary jurisdiction referral. See 28 U.S.C. § 1631.

I.

We briefly describe the facts, beginning with the underlying litigation. In 1987, the Commonwealth of Massachusetts sued Blackstone Valley Electric Company ("Blackstone"), the corporate predecessor to Narragansett Electric Company ("Narragansett"), the plaintiff in this action, in federal district court for the District of Massachusetts to recover cleanup and response costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. See Blackstone Valley, 67 F.3d at 983-84. The cleanup costs were for excavation and removal of soil and wood chips contaminated with the compound ferric ferrocyanide ("FFC"). See id. The FFC was created as a waste byproduct of a coal-based gas manufacturing process employed by a gas facility that had been operated by Blackstone from 1920-1961. See id.

The Commonwealth's ability to recover its cleanup costs turned essentially on the question of whether FFC was a "hazardous substance" within the meaning of CERCLA. See id. at 984. CERCLA's definition of "hazardous substance" incorporated various lists of substances from other environmental statutes, including the list of "toxic pollutants" that the EPA Administrator was charged with promulgating under the CWA, 33 U.S.C. § 1317(a). See 42 U.S.C. § 9601(14)(D). FFC itself is not listed on any of the lists incorporated by CERCLA. However, the category "cyanides" is included on the CWA's list of toxic pollutants, as determined by the EPA Administrator. 40 C.F.R. § 401.15; see also 40 C.F.R. § 302.4 & tbl. 302.4 (incorporating this list into CERCLA).

The Commonwealth's argument in the initial litigation was that the term "cyanides" in the CWA list of toxic pollutants under 33 U.S.C. § 1317(a) included within it the compound FFC. The district court granted the Commonwealth partial summary judgment on the issue of whether FFC was a "hazardous substance" under CERCLA, holding that the term "cyanides," by its "plain meaning," included the cyanide compound FFC. See Commonwealth of Mass. v. Blackstone Valley Elec. Co., 777 F.Supp. 1036, 1038-39 (D.Mass. 1991).

On appeal, this court vacated the district court's grant of partial summary judgment on this issue. We held that there was no plain meaning whether the term "cyanides" included FFC, given conflicting expert affidavits on the scientific meaning of the term. Blackstone Valley, 67 F.3d at 986-87. We noted further that "[h]aving found ... that EPA's regulatory framework does not adequately define the term, that the legislative and regulatory history of the term `cyanides' does not establish the Commonwealth's position, and that the position advocated by amicus [the EPA] is not entitled to deference, we are left with virtually no legislative or administrative guidance for determining whether" the term "cyanides" includes FFC. Id. at 991-92. Thus, we ordered the question referred to the EPA under the primary jurisdiction doctrine. See id. at 992. Specifically, we remanded the case to the district court to refer to the EPA the question, for "administrative determination," of "whether FFC qualifies as one of the `cyanides' within the meaning of 40 C.F.R. § 401.15 and 40 C.F.R. § 302.4, Table 302.4." Id. at 993. The district court stayed its own proceedings pending this determination.

Eight years later, in 2003, the EPA finally answered the question in a "final administrative determination" ("FAD"), as follows: "ferric ferrocyanide ... is one of the `cyanides' within the meaning of the Toxic Pollutant List under the Clean Water Act." See 68 Fed.Reg. 57,690 (Oct. 6, 2003). In reaching this conclusion, the EPA undertook both a "legal review" and a "scientific review." In its legal review, the EPA considered the legislative history of the CWA's toxic pollutant provision, 33 U.S.C. § 1317(a), the statutory language of this provision, and its own history of implementing this provision. It acknowledged that none of these sources specifically addressed FFC or discussed the scope of the term "cyanides," but found that these three indicators showed that the listed pollutants under 33 U.S.C. § 1317(a) were "meant to be broad categories or families of compounds." Further, the EPA noted that the context of § 1317(a) made a broad reading of these listed toxic pollutants sensible: "Listing does not impose any regulatory requirements; rather it establishes how a listed pollutant may be regulated in effluent limitation guidelines and national pollutant discharge elimination system ... permits."¹ In its scientific review, the EPA stated that there was evidence that FFC can and has released free cyanide in the environment in ways that could be toxic to humans and aquatic organisms. "[C]omments from peer reviewers [and] non-EPA experts with specialized knowledge... were generally supportive of EPA's scientific analysis"; thus this scientific analysis "support[s]" the EPA's conclusion from its legal review that the term "cyanides" under 40 C.F.R. § 401.15 includes FFC.

Before promulgating its FAD, the EPA provided notice and opportunities for public comment, as well as a peer review of its proposed determination by scientists. See 60 Fed.Reg. at 57,691. The EPA stressed that in its view, because its FAD was not a "legislative rule," the agency did not need to provide a notice and comment period, but had provided one solely out of choice. See id. The EPA also emphasized its view that:

EPA's [FAD] ... clarifies the Agency's interpretation of the term `cyanides' and does not impose new requirements. It does not mean that [FFC] is a newly added pollutant to the toxic pollutant list under [33 U.S.C. 1317(a)]. The FAD is not a regulation nor does it change existing regulations under the CWA or CERCLA.

Unhappy with the EPA's FAD, which obviously meant it was more vulnerable to having to pay CERCLA clean-up costs to the Commonwealth, Narragansett (the corporate successor to Blackstone) filed a petition for review under 33 U.S.C. § 1369(b) of the EPA's FAD in this court, on January 22, 2004.

Before us, Narragansett seeks a determination that the EPA's FAD constituted a "legislative rule" adopted without complying with the strictures of the Administrative Procedure Act ("APA"), and thus is void. Meanwhile, the Federal District Court for the District of Massachusetts continues to have jurisdiction over the initial, underlying case in which the Commonwealth sued Narragansett for cleanup costs, because it was the court that originally referred the question to the EPA under the primary jurisdiction doctrine. As best we can tell, no substantive action has taken place in that court due to the pendency of this action.

The EPA has sought to dismiss the court of appeals review petition for lack of subject matter jurisdiction, arguing that we do not have original jurisdiction over this action under 33 U.S.C. § 1369(b) and that any jurisdiction is instead vested in the district court under the general provisions of the APA. Narragansett opposes this motion. The Commonwealth has intervened and, while taking no position on the jurisdiction question in the court of appeals, argues that if we find that we have no jurisdiction over this case, we ought to transfer the action to the district court hearing the initial case between the Commonwealth and Narragansett, rather than dismissing it entirely, so as to facilitate efficient resolution of the underlying CERCLA claim. Narragansett opposes this as well.

II.

The relevant jurisdictional provision at issue, 33 U.S.C. § 1369(b), provides for direct federal court of appeals review of certain actions of the EPA Administrator under the CWA.² Among the EPA Administrator's actions under the CWA which are directly reviewable in the courts of appeals are the promulgation of "any effluent standard, prohibition, or pretreatment standard under [33 U.S.C. § 1317]." 33 U.S.C. § 1369(b...